ANSWER- continued.

(see NEW MATTER, DEFENCE OF): union of defences in same answer,
715-725; - what may be united, 715; - how each defence should be stated,
716-720;- must be complete, 716; - mode of alleging separate specific
denials, 717-720;- what kinds of defences may be joined in one answer,
those in bar and those in abatement, 721; - inconsistent defences, 722-725;
counterclaim, set-off, and cross-complaint, 726-808 (see COUNTERCLAIM
and CROSS-COMPLAINT).

ARBITRAMENT and award, defence of, is new matter, 702.

ARGUMENTATIVE DENIALS, 624-632 (see DENIALS, DEFENce of).
ASSIGNABILITY of things in action, 144-153; - not affected by provision of

the codes, 144; - things in action which survive are assignable, 145, 146; -
what do survive, and what do not, 147;- examples of those assignable, 148–
151;-do. not assignable, 152, 153.

ASSIGNEE, of thing in action to be plaintiff, 125-138 (see REAL PARTY IN
INTEREST); — do. equitable, action by, 251; —do. in bankruptcy or insol-
vency, equitable action by, 261.

ASSIGNMENT of a thing in action, effect of, upon defences to it, 154-170
(see DEFENCES TO A THING IN ACTION, &c.).

ASSIGNOR and assignee of thing in action, equities between, 158-161.
ASSUMPSIT, pleading in action of, 512.

B.

BAR, defences in, may be joined with those in abatement, 721.

BELIEF, denial of knowledge or information sufficient to form a, 640, 641.

BILLS and notes, actions by assignees of, 128-131.

BRINGING IN NEW PARTIES, 411-431 (see NEW PARTIES, &c., and IN-
TERVENTION).

C.

CANCELLATION, defendants in action for, 579-581.
CAPACITY to sue, want of legal, 208.

CAUSE OF ACTION, the, statement of, by the plaintiff, 432-580 (see Coм-
PLAINT) ; — meaning of, 452-457, 518–525; —not defined by judicial deci-
sion, 452; — analysis of the action, elements thereof which are the "cause,"
453, 454;-test by which to determine whether one or more causes of action
are stated by the plaintiff, 455-457;-distinction between legal and equitable,
521, 522; what facts constitute, 523-525 (see PLEADING, GENERAL PRIN-
CIPLES OF).

-

CAUSES OF ACTION, joinder of, 437-505 (see JOINDER OF CAUSES OF
ACTION); — do. method of stating separate, in one complaint or petition,
575, 576; — each must be complete, 575; — stating one cause of action in
several counts or forms, 576; -joint or separate demurrers to, 577.
CESTUIS QUE TRUSTENT, equitable action by, 268.
CHATTELS, action by joint owners or possessors of, 221–225 (see PLAINTIFFS,
JOINDER OF); — action against joint owners, &c. of, 297, 298; --- counter-
claim in action to recover possession of, 761-767; defence of new matter
in do., 703.

-

CIVIL ACTION, the, general nature of, 31-41; - central feature of the re-
formed procedure, 31-34; its essential elements, its abolition of the dis-
tinction between legal and equitable actions, 35-37; — its parties, 38; — its
pleading, 39, 40; -its judgment, 41.

-

Theoretical unity of legal and equitable actions in one civil action, 45–64;
nature of equity determined, 45-53; — equitable primary rights, 46–48 ; -
equitable remedies, 49-52; - summary of the foregoing discussion, 53; -
how far a union of legal and equitable actions is possible, and what it means,
54-64.

Union of legal and equitable actions into one civil action as established by
judicial construction, general nature of the civil action, 65–75; —two schools
of judges, 66; restrictive construction by one, 66, 67; — liberal and correct
construction by the other, abolition of the distinction between legal and
equitable actions, 68-73; - does not abolish the distinction between legal and
equitable rights or causes of action, 68; nor between legal and equitable
reliefs, 69; but abolishes the distinction between actions, and establishes
one action for all rights and reliefs, 70-73; this doctrine as applied to
pleading, 74, 75.

-

-

-

Union of legal and equitable rights and remedies in one civil action, 76–
86;
cases arising from such union, 77 ; — union of both legal and equitable
causes of action and the granting of both legal and equitable reliefs, 78, 79;
- union of both causes of action and the granting of legal relief only, 80, 81;
— both causes of action alleged, and equitable relief demanded, but legal relief
obtained, 82;-legal relief granted when only equitable was prayed for, 83;
but not unless a legal cause of action is stated, 84; use of an equitable
right in support of a legal cause of action, 85; - mode of trial of legal and
equitable issues when united, 86.

-

A legal remedy obtained upon an equitable ownership or right, 98–106;
whether equitable owner of land can maintain an action for its possession, 98-
103;
- action by one partner against another to recover a share of firm prop-
erty, 104; other actions, 105;
summary, 106.

Nature of civil actions, and the essential differences between them, 107-
111;
the differences belong to the primary rights and to the remedies, and
not to the forms of the action, 107, 108; examples, 109; right of elec-
tion between actions ex contractu and those ex delicto, 110;-impropriety of
retaining the former names of actions, 111.

-

Equitable defences to legal actions, 87-97 (see Equitable Defences).
CODES, provisions of, concerning parties, 113-121;-real party in interest,
124; — defences to suit by assignee, 154 ;— trustee of an express trust, 171;
-joinder of plaintiffs, 183; suits between husband and wife, 234-236 ; —
joinder of defendants, 271; action by or against one as a representative of
all others, 388;- several liability on same instrument, 402, 403; - bringing
in of new parties, 411, 412;— intervention, 413; - complaints or petitions,
432-436; - joinder of causes of action, 438-440 ;
and replies, 581-591.

COMMITTEES of lunatics, &c., suits by, 182.

answers, counterclaims,

COMMON COUNTS, use of, 542-544 (see PLEADING, GENERAL, &c.).
COMMON LAW, rules concerning joinder of plaintiffs, 184-193 (see PLAIN-
TIFFS, &c.) ; — do. of defendants, 273-283 (see DEFENDANTS, &c.) ;—
pleading, principles of, 508-512 (see PLEADING, &c.).

COMPLAINT or petition, 432-580; - provisions of codes, 432-436; — joinder
of causes of action, 437-505 (see JOINDER, &c.); — general principles of
pleading, 506-573 (see PLEADING, GENERAL PRINCIPLES OF); — form of the
complaint or petition, 574-580; statement of separate causes of action,
575, 576; each must be complete, 575; - - one cause of action in two or
more counts, 576; -joint or separate demurrers, 577;- allegations admitted,
578; qualified admission in the answer, 578;— defective allegations sup-
plied by the answer, 579;- prayer for relief, 580.
CONNECTED WITH the subject of action, 769-776 (see COUNTERCLAIM).
CONSTRUCTION of pleadings, liberal, 545–547.

-

CONTRACT, when agent may sue on, 175-178 (see TRUSTEE OF EXPRESS
TRUST); joint and several rights on at common law, 185-188; - joint,
actions on, 226-228, 299-304 ; several, actions on, 229, 306; — against
survivors on joint, 302-304; — joint and several, actions on, 305; - implied,
actions on, 538-541;- actions on, distinguished from those for tort, 558-
564;
election between actions on, and those for tort, 567-573 (see PLEAD-
ING, &c.); defences of new matter in actions on, 707-710; - counterclaims

arising from, 777-780 (see COUNTERCLAIM).

CONTRIBUTION, defendants in actions for, 385.

-

CORPORATIONS and stockholders, defendants in actions against, 360–365.
COUNTERCLAIM, 726-805; · classes of, 726, 727; cross-demands by the
former system, 729-732; -set-off, 729, 730; recoupment, 731, 732;
duction of damages, 733.

re-

General description, nature, object, and uses of the counterclaim, 734–
748;-embraces set-off and recoupment, 734-736; · and also other demands,
737; must be a cause of action, 738; - whether it implies a valid claim by
the plaintiff ; must be in favor of the defendant, 740; and against the
plaintiff, 741;- subject-matter of, 742 ;— judicial constructions, 743–747 ; -
must defeat or interfere with the plaintiff's recovery, 744, 745; — mode of
pleading it, 748.

-

Parties in their relations with the counterclaim, 749-762; the defendant,
749–751; — the plaintiff, 752–754 ; when it may be in favor of one or more
of several defendants, or against one or more of several plaintiffs, 755–762;
one or more defendants, 756, 757; - one or more plaintiffs, 758, 759; - rule
in Iowa, 760; — summary of the foregoing, 761;— want of necessary parties,
762.

-

Subject-matter of, or nature of the causes of action which may be counter-
claims, 763-803;— may be equitable, 764–767; in actions to recover pos-
session of chattels, 767; — counterclaims under first branch of the definition,
768-794; -interpretation of this clause, "transaction," and "connected with
the subject of action," 769-776; — counterclaims arising from the contract set
forth by the plaintiff, 777-780; — do. from the "transaction," &c., 781-792;
-in legal actions where both parties demand a money judgment, 783–790;
where both are on contract, 783; - where plaintiff's claim is on contract,
and defendant's is for tort, 784-787; · for trespasses, nuisances, or negli-
gences, 785, 786; - for frauds, 787; where plaintiff's claim is for tort, and
defendant's is on contract, 788, 789; where both are for torts, 790; - in legal
actions for possession of lands or chattels, 791;-in equitable actions, 792;
- counterclaims "connected with the subject of action," 793, 794.

-

-

-

Counterclaims embraced in the second branch of the definition, and set-offs,

COUNTERCLAIM — continued.

-

-

-

795-803; subject-matter of, 796; - when the right of action must accrue
to defendant, 797; examples of such counterclaims, 798-803; — election
between actions ex contractu and ex delicto, 801; — equitable, 802, 803; —
miscellaneous provisions, 804, 805; — whether a counterclaim must be pleaded,
804; - form of verdict and judgment, 805.

COUNTIES, suits by, 179.

CREDITORS' ACTIONS, plaintiffs in, 266-268; - defendants in, 346–350.
CROSS-COMPLAINT, 806-808.

CROSS-DEMANDS (see COUNTERCLAIM).

D.

DAMAGES, recoupment of, 731, 732;-reduction of, 733;— mitigation of,
693-696.

DECEDENTS' ESTATES, defendants in actions concerning, 315, 351–355.
DEFECT OF PARTIES, plaintiff, 206, 207; — do. defendant, 287, 288.
DEFECTIVE ALLEGATIONS, when supplied by the answer, 579.
DEFECTIVE ANSWERS, described, and how objected to, 597–605 (see AN-
SWER, &c.).

DEFENCE, the, statement of (see ANSWEr, Denials, New MATTER, and
COUNTERCLAIM) ; — do. of denials, 610–685 (see DENIALS); — do. of new
matter, 686-714 (see NEW MATTER).

--

-

-

DEFENCES, partial, 607-609; - under the general denial, 670–682 (see Gen-
ERAL DENIAL); — in mitigation, how pleaded, 693–696; — in abatement, how
pleaded, 697, 698; may be joined with those in bar, 721;- union of in
same answer, 715-725; — inconsistent, 722-725 (see ANSWER); — equitable,
87-97 (see EQUITABLE DEFENCES).

-

--

DEFENCES TO A THING IN ACTION assigned, 154-170; - provisions
of the codes, 154; - are not counterclaims, 155; - former rules re-enacted
by the codes, 156: - rule as to defences in favor of the debtor, 157 ; — equi-
ties between successive assignors and assignees, 158-161; — recent cases,
159-161; doctrine of estoppel against the assignor, 160, 161; - summary
of the discussion, 162; — demands against assignor set off in action by as-
signee, 163-169; other defences, 170.

-

-

DEFENDANT, action against one as a representative of all others interested,
388-401 (see ACTION BY OR AGAINST ONE, &c.); — pleading by (see AN-
SWER, DENIALS, NEW MATTER, and COUNTERCLAIM).
DEFENDANTS, joinder of, 271-387; — provisions of the codes, 271; -com-
mon-law rules, 273-283; — concerning joint, joint and several, and several
liabilities, 273–276; in actions on contract, 277-280;- survivors of joint
debtors, 280; in actions for torts, 281, 282;-in actions against husband
and wife, 283.

--

-

General doctrines of the reformed procedure concerning joinder of defend-
ants, 284-286; how questions of nonjoinder or misjoinder are raised, 287–
293;-nonjoinder of defendants, 287, 288;-misjoinder of do., 289–293;
- where the liability is joint, 290–292.

-

-

Defendants in legal actions, 294-317; against owners and occupants of
land, 294-296; - do. of chattels, 297, 298;—in actions on joint contracts,

DEFENDANTS - continued.

299-304;

against survivors, 302–304 ; — on joint and several contracts, 305;
on several contracts, 306; for torts, 307-314; for the settlement of
decedents' estates, 315; in certain special actions, 316.

-

-

-

Defendants in actions against husband and wife, or wife alone, 318-328; —
general nature of the legislation, 318; -action against wife concerning her
separate property, 319, 323; - for torts of wife, 320; - for torts done in
connection with her property, 321; — rules in New York and certain other
States, 323;-in Indiana, 324;—in actions concerning homesteads, 325; –
sole traders in California, 326; for wife's debts when single, 327;
rate defences by wife when sued with her husband, 328.

-

-

sepa-

Defendants in equitable actions, 329-387; - general principles, necessary
and proper parties distinguished, 329-332, 486–490; — in actions to foreclose
mortgages, 333–345; — general doctrine, 333–335; · mortgagor and his
grantees, 336, 337; — heirs and representatives, 337, 338; — assignors, 389;
- holders of notes secured by the mortgage, 340; -occupants of the land,
subsequent and prior incumbrancers, 342;— wives of mortgagor and
of subsequent owners, 343, 344; case of homesteads, 345.
Creditors' actions, 346-350; nature of, 346 ; — judgment debtor or his
representatives, 347, 350; — his assignees, 348, 349; and trustees, 350.

-

341;

-

-

Actions concerning decedents' estates, 351-355; — when administrator,
&c., a sufficient party, when heirs are necessary, 352, 353;- when legatees,
distributees, or creditors, not proper, 354; - when beneficiaries, legatees,
&c., necessary, 355.

-

Actions involving trusts, 356-359; the trustee necessary, 356; — when
beneficiaries are and are not necessary, 357, 358; - actions to enforce implied
trusts, 359.

-

-

-

-

Actions against corporations and stockholders, 360-365; - to wind up the
corporation, &c., 360, 361; — by judgment creditors against stockholders
personally liable, 362;- by stockholders against the corporation and its
officers to set aside fraudulent transactions, 363; — for an accounting, 365.
Actions for a specific performance, 366–368; - - the parties to the contract,
their heirs and representatives, 366; - persons acquiring subsequent interests,
366-368; heirs or representatives of vendor and vendee, 367.
Actions to quiet title, 369-372; all adverse claimants to be joined, 369,
370, 372; - in actions to correct mistakes in deeds, &c., 371.
Actions for partition, 373–377; general rules of equity, 373, 374; when
lien-holders may be joined, 375; - wife of a tenant in common, 376; — when
personal representative of a deceased tenant in common may be joined, 376 ; —
law in Indiana and in California, 377.

Actions relating to partnership matters and for an accounting, 378;
a rescission or cancellation, 379-381; - for the enforcement of liens, 382-
384;
- mechanics' liens, 382; - pledges of securities, 383; - for contribu-
tion, 385; - by tax-payers, 386; to redeem, 387.

-

-

Defendants severally liable on the same instrument, 402-410 (see SEV-
ERAL LIABILITY ON THE SAME INSTRUMENT).

--

DEMURRERS, for misjoinder of causes of action, 443-445; — joint or separate,
577; special, abolished, and motion substituted for, 596.

-

DENIALS, defence of, 610-685; — kinds of, 610, 611;-divisions of the sub-
ject, 611, 612; - external forms of, general or specific, 613;-specific de-